his right to a certain copyright; and if the plaintiff recovers, the damages must be distributed amongst the unpaid creditors of his father. This rule must therefore be discharged. If there be a good ground of action, the order of my Brother Martin does not prevent the plaintiff from applying to the Court of Chancery for permission to proceed; but without that permission, any step which he may now take will be null and void. I entertained no doubt about the point when it was first argued, but it was then suggested by the plaintiff that there was no final decree. It turns out, however, that the order for the injunction is still in force, and that impliedly prohibits the plaintiff from bringing this action. ALDERSON, B., and PLATT, B., concurred. 1855. COBBETT บ. LUDLAM. Rule discharged. 452 MICHAELMAS VACATION, 19 VICT. 1855. Nov. 30. A., by settlement on the marriage of his daughter with B., covenanted to pay them 500l. a year during their In the Matter of JOHN NATHANIEL MICKLETHWAIT, and THIS was a petition against the decision of the Commissioners of Inland Revenue, under "The Succession Duty Act, 1853," (16 & 17 Vict. c. 51, s. 50). The petition stated, that, by indenture dated the 28th May, 1849, and made between Nathaniel Micklethwait of the first part, John Branthwayt Micklethwait of the second part, the petitioner of the third part, Charles Mills of the fourth part, Emily Mills of the fifth part, Francis Astley, &c. of the sixth part, and Edward Mills and Frederick Micklethwait into possession of the seventh part, being a settlement made upon the lives, provided that if B., by reason of the death of his brother with out issue, should come of certain estates, the covenant should cease, determine, and be void. In 1853, B.'s bro ther died with out issue, and B. came into possession of the estates: marriage, then intended and shortly afterwards solemnised, between the petitioner and Emily Mills, the said Charles Mills, on behalf of himself, his heirs, executors, and administrators, covenanted to pay to the said Edward Mills and Frederick Micklethwait an annual sum of 500l. during the lives of the petitioner and the said Emily Mills, and the life of the survivor, payable half yearly, &c.; and it was by the said indenture declared, that the said Edward Mills and Frederick Micklethwait, their executors, administraland Revenue, tors, and assigns, should hold the said annuity of 500l. upon trust, to pay the same to the petitioner during his life, and after his death to the said Emily Mills, during her life. And it was by the said indenture provided, that if the petitioner should, by reason of the death without issue male of Held, on appeal, against the decision of the Commissioners of In that, in assess ing the duty chargeable un der "The Succession Duty Act, 1853," B. was entitled, under the 38th section of that Act, to an allowance in respect of the loss of the annuity. Sir Sotherton Micklethwait, come into possession of certain estates, therein mentioned to have been devised to the petitioner and his assigns, for his life, by the will of the said John Micklethwait, deceased, and which will bears date the 24th October, 1822, then the said covenant thereinbefore contained on the part of the said Charles Mills, his heirs, &c., for the payment of the said annuity or yearly sum of 500l., should absolutely cease, determine, and be void. The said Sir Sotherton Micklethwait died on the 3rd September, 1853, without issue male. Upon such death, the petitioner came into possession of the estates, in the said proviso mentioned to have been devised to him and his assigns for his life by the said will bearing date the 24th October, 1822, and thereupon he was deprived of the said annuity so payable to him as aforesaid. The petitioner made a return to the Commissioners of all the succession on real property accruing to him upon such death as aforesaid, and in such return claimed to have an allowance made to him, under the provisions of "The Succession Duty Act, 1853," in respect of the value of the said annuity of which he had been so deprived as aforesaid. The Commissioners have, in the assessment made by them in respect of such succession, refused to make such allowance as aforesaid. Prayer-That the assessment of the Commissioners may be rescinded as far as the same omits to make to the petitioner an allowance in pursuance of the provision of "The Succession Duty Act, 1853," in respect of the value of the said annuity of 500l. per annum of which he has been so deprived as aforesaid; and that such allowance as aforesaid may be ordered to be made to the petitioner. Bovill and Thring for the petitioner (a).—The petitioner (a) Pigott claimed the right to begin, on the ground that he appeared in support of the assessVOL. XI. H H ment of the Commissioners; but 1855. In re MICKLETHWAIT. 1855. In re MICKLETHWAIT. is entitled to an allowance in respect of the annuity which he has lost. It is conceded, that the property which the petitioner took under the will of the 24th October, 1822, conferred on him a "succession" within the meaning of the 16 & 17 Vict. c. 51, s. 2, and that it is subject to duty under the 10th section; but throughout the Act care has been taken to prevent persons from being charged with duty, except on the value of the property which they have obtained. The principle has been to render the tax co-extensive with the actual benefit derived from the succession. Thus the 14th section provides, that where the interest of any successor in personal property shall, before he becomes entitled thereto in possession, have passed by reason of death to any other successor, only one duty shall be paid, and shall be due from the successor who first becomes entitled in possession. By the 20th section, the duty is to be paid when the successor becomes entitled in possession to his succession, and in the case of outstanding interests on the determination thereof. The 28th section allows a deduction for fines, &c., on charges incident to the tenure of copyhold or real property. [Alderson, B.-That shews that the word "value" means "net value."] By the 34th section an allowance is to be made in respect of monies which the successor may, previously to his possession, have laid out in repairs or improvement of real property. The 35th section enables the successor to claim a return of duty in the event of a contingent incumbrance taking effect as an actual burden. The 37th section provides, that where the successor shall not have obtained the whole of his succession at the time of the duty becoming payable, he shall only be chargeable on the value of the property or benefit obtained by him; and it also provides for refunding the duty where it has been paid in respect of property which the successor has been unable to recover, or from which he has been evicted. Then by the 38th section, "Where any successor, upon taking a succession, shall be bound to relinquish or be deprived of any other property, the Commissioners shall, upon the computation of the assessable value of his succession, make such allowance as to him may be just in respect of the value of such property." The present case falls within that enactment. If the petitioner is not entitled to an allowance in respect of the loss of his annuity, there will be a double tax, for the settlor became a successor within the meaning of the 5th section, and by the 12th section he is chargeable with duty in respect of his succession. Pigott for the Crown.-This is a mere personal covenant by the settlor to pay the petitioner 500l. a year until he shall come into possession of other property; and when the annuity ceased, that was not a relinquishment or deprivation of property within the meaning of the 38th section. The petitioner lost the annuity, not because he had come into possession of the other property, but by reason of the covenant having ceased. [Parke, B.-He is deprived of "other property," if this covenant to pay 500l. a year is "property." Alderson, B.-The interpretation clause (section 1) declares that the term "personal property shall include "money payable under any engagement." Then the 38th section may be thus read—“ Where any successor upon taking a succession shall be bound to relinquish or be deprived of any money payable under any engagement," &c. Here the petitioner upon taking a succession is deprived of money payable under an engagement, viz. 500l. a year, payable under a covenant contained in his marriage settlement.] That means money payable under a subsisting engagement: here the covenant is at an end. This annuity was merely a provision for the petitioner until he should acquire his succession, and therefore, when he obtained it, he cannot be said to have been deprived of property within the meaning of the Act. [Parke, B.-He has lost the benefit of a covenant to pay him 500l. a year. If 1855. In re MICKLETHWAIT. |